RIGHTS-INDIA: India's Historic Gay Ruling

KOLKATA, Jul 3 2009 (IPS) - A day after the Delhi High Court's landmark judgment to overturn a colonial law that criminalised homosexuality, Indians expressed mixed reactions to the verdict.
After almost 150 years of introduction of Section 377, a law of the Indian Penal Code (IPC) which describes same-sex relationships as an "unnatural offense", the Delhi High Court overturned the law on July 2, ruling that gay sex between consenting adults would no longer be unlawful.

"Homosexuals in the country now have the right to live like any other citizen and without being treated like criminals," Anjali Gopalan, the director of the Naz Foundation, a New Delhi-based gay rights nongovernmental organisation.

But she cautioned that the "judgment doesn’t mean that homosexuality is legal, but that adults in consensual homosexual relationship cannot be discriminated against."

Section 377 of IPC was introduced in India in 1860 during the British colonial period indicting homosexuality as "carnal intercourse against the order of nature" and thus punishable by law. In Britain, the Victorian law was scrapped in 1967, but its former colonies chose to cling to it.

Since 1994, gay rights activists have consistently demanded that this law be changed, citing it as discriminatory and misused to harassed homosexuals.

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But their demand had not been to completely abolish the Section, but only "read down" the law, given Section 377 is instrumental in prosecuting other crimes like pedophilia.

The high court in its ruling recommended those parts of the section 377 that deal with sexual offenses such as "non-consensual sodomy" be transferred to other sections of the IPC that deal with rape, like 375 and 376. The verdict clarified that Section 377 will be enforced for sex offenses involving minors.

Activists have long contended that Section 377 exacerbates the spread of HIV infection among the MSM (Men having Sex with Men) and transgender community.

"Oppressive laws such as Section 377 drive people underground making it much harder to reach them with HIV prevention, treatment and care services." said Michel Sidibé, the executive director of UNAIDS, a nongovernmental organisation.

However, the controversial ruling has become a hot potato in New Delhi’s corridors of power.

"There are several opinions on the matter," in the Indian government, Veerappa Moily, union law minister, told the Indian media on July 3.

The minister is opposed to repealing the law on moral grounds, citing that the country was not yet ready for it and advocated retaining it to avoid "far reaching consequences."

But India’s Health Ministry welcomes the decision to amend the law.

Last year, at the 17th International AIDS Conference in Mexico City, Anbumani Ramadoss, the Indian union minister for health and family welfare said, "Structural discrimination against those who are vulnerable to HIV such as sex workers and MSM must be removed if our prevention, care and treatment programs are to succeed. Section 377 must go."

But social groups are upbeat.

"Personally it’s a feeling of lightness, as if a huge burden has gone off my shoulders," said Pawan Dhall, the director of ‘Solidarity and Action Against the HIV Infection in India’, a Kolkata-based nongovernmental organisation. "It’s a sign that progressive India is a place for everyone, where people of different sexual orientations can live together."

But the battle for gay rights is hardly over, he cautions.

"The Delhi HC decision is the first hurdle we have crossed. It’s a big morale booster for us who work in this field," he said. "We’ve to be always careful so that we are not seen as breaking the law. Violence against the members of the community has also been common. We didn’t have any standing to fight our case. Now we have. It will also have a social impact."

The decision has not gone down well with religious conservatives who have long regarded gays and lesbians as ‘aberrations’.

As soon as the Delhi HC ruling was in the public domain, sections of Muslim religious leadership, Catholic Church and Hindu conservatives came out strongly against the decision.

Rev. Babu Joseph, a spokesman for the Catholic Bishops Conference of India said the decision was "disappointing" but clarified that though homosexuals should not be treated as criminals, "we cannot afford to endorse homosexual behaviour as normal and socially acceptable."

Even before the verdict came out, Jamiat-e-Ulema-e-Hind's Maulana Mehmud Madani stated that "Homosexuality is Haram (prohibited) and an immoral act. It is unnatural. It is a punishable offence in Shariat. It is against the age old traditions and culture of India and of Islam."

Some Hindu religious leaders also condemned it calling it "against Indian culture."

"People who have resisted our stand saying it’s against ‘Indian culture’ ignore human rights," Dhall argued. "Besides, if culture means inclusiveness, being honest hard-working citizens of a country, is it [a] prerogative of only a certain section people?"

The ruling, according to Saeed, a gay rights activist from Pakistan, said the historic verdict should set a precedent for "the entire ex-British-colonized world still clinging to the absurd laws."